The Clock Is Ticking: Why Congress Needs To Renew America’s Most Important Intelligence Collection Program (Part I) – Analysis

(FPRI) — Amidst the myriad political issues dominating the congressional calendar, Congress faces a decision on renewing the FISA Amendments Act[1] originally enacted in 2008, extended in 2012, and now set to expire on December 31, 2017.

Among the provisions up for renewal is Section 702 (50 U.S.C. § 1881a) of the FAA titled “Procedures for Targeting Certain Persons Outside the United States Other Than United States Persons.” Since it was passed by Congress in 2008, the collection program conducted under Section 702 (the “Section 702 Program”) has steadily grown to become arguably the most significant collection tool available to the U.S. Intelligence Community. By 2011, the National Security Agency (NSA), the agency responsible for conducting the nation’s signals intelligence activities, was acquiring more than 250 million internet communications each year pursuant to Section 702.[2] By 2014, it was estimated that more than 25 percent of all foreign intelligence reports issued by NSA concerning counterterrorism included information based in whole or in part on Section 702 collection.[3] Although similar calibrations of Section 702’s value remain classified, neither the volume of Section 702 collection nor its ubiquity in intelligence reporting is likely to have diminished since 2014.

Yet, despite its apodictic value as an intelligence tool, Section 702 has its critics who insist that it transcends constitutional bounds and that Congress should allow the program either to lapse or renew it only with significant changes.[4] This paper examines the historical antecedents of Section 702, the concepts underlying the statutory language used in Section 702, and the actual operation of the Section 702 Program in the context of the constitutional debate that surrounds it to conclude that there is no compelling reason for Congress to materially disturb the statute as written, or the Section 702 Program as conducted by the Intelligence Community.

A Brief Review of the Evolution of Authority to Conduct Electronic Surveillance for Foreign Intelligence Purposes

Under Article II of the U.S. Constitution, the president is designated as the commander in chief of the armed forces and the principal actor for the Nation in the protection of its national security and the conduct of its foreign affairs. Until the 1960s, presidents relied upon this constitutional authority as the basis for authorizing, without a warrant or the involvement of the courts, electronic surveillance for foreign intelligence and counterintelligence purposes.

In 1968, responding in part to a number of U.S. Supreme Court decisions impacting the use of electronic surveillance as a law enforcement tool, Congress passed the Omnibus Crime Control and Safe Streets Act.[5] This law established a specific statutory framework governing the use of electronic surveillance for law enforcement purposes and making such surveillance subject to prior court order predicated upon a detailed application and carefully circumscribed conditions of use. Reflecting the unsettled division of authority between governmental branches in the area of foreign intelligence matters, a proviso to Title III disclaimed that any provision in the act was intended to “limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack . . . to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities.” 18 U.S.C. § 2511(3).

In U.S. v. U.S. District Court (the “Keith” case),[6] the Supreme Court considered the legality of an Attorney General-authorized warrantless surveillance of a U.S. citizen accused of bombing a CIA office building. The Court ruled that the above-cited proviso in § 2511 was merely a disclaimer of congressional intent to define presidential powers in matters affecting national security and did not represent a blanket grant of authority to conduct warrantless national security surveillance. With this as a predicate, the Keith Court concluded that electronic surveillance in domestic security matters must comply with Title III standards requiring a warrant, but the Court specifically declined to address the scope of the president’s authority to authorize electronic surveillance in matters relating to foreign powers or their agents.[7] Thus, Keith represented the first departure from unfettered executive discretion in the conduct of electronic surveillance arguably related to national security. After Keith, at least in cases of domestic security investigations, a warrant was required.

Subsequent congressional investigations in the 1970s, principally through the inquiries of the “Pike Committee” in the House of Representatives and the “Church Committee” in the Senate,[8] led to further calls for controls over executive discretion in the conduct of intelligence activities. Two particular NSA programs, Project Shamrock and Project Minaret,[9] were revealed to involve the acquisition of the communications of U.S. persons without warrant or any judicial oversight. In response to these and other revelations, Congress passed the Foreign Intelligence Surveillance Act of 1978 (“FISA”)[10] which sought to provide judicial oversight for the conduct of electronic surveillance in the United States for foreign intelligence and counterintelligence purposes.

An Overview of FISA’s Requirements

Subject to certain prescribed statutory exceptions,[11] FISA is “the exclusive means by which electronic surveillance and the interception of domestic wire, oral or electronic communications may be conducted.”[12] In FISA, “electronic surveillance” is a defined term requiring the acquisition of the contents of a wire or radio communication by the use of an electronic, mechanical, or other surveillance device.[13] As originally enacted in 1978, FISA’s scope embraced the conduct of electronic surveillance (as defined in the statute) for foreign intelligence purposes in the United States. FISA mandated that (with certain exceptions) such surveillance be conducted only pursuant to an order issued by the Foreign Intelligence Surveillance Court (FISC)[14] based upon an application by an appropriate federal official with such order issuing only after a finding by the FISC (1) that there was probable cause to believe that the target of the surveillance was a foreign power or an agent of a foreign power; (2) that each of the facilities at which the surveillance was directed was being used or about to be used by a foreign power or an agent of a foreign power, and (3) that the minimization procedures proposed for use with the surveillance satisfied FISA’s standards.[15] In terms of the substantive standards governing the conduct of electronic surveillance, FISA remained largely unchanged until 2008.

Consequently, as originally structured in 1978, Congress excluded three types of foreign intelligence collection from FISA: (1) electronic communications outside U.S. borders; (2) intelligence collection inside the U.S. and abroad that fell outside the statutory definition of “electronic surveillance;” and (3) incidental collection of U.S. person communications.

Electronic Surveillance in the Aftermath of 9/11 Leads to Passage of the FISA Amendments Act

While FISA remained substantively static over the next three decades, world events and evolving telecommunications did not.

Telecommunications technology and accompanying changes in infrastructure altered the communications environment in ways unanticipated when FISA was enacted in 1978. For example, FISA contemplated an environment in which most local (i.e., domestic) communications would be carried by wire while the majority of international communications would be transmitted via radio.[16] By the early 2000s, however, the shift to undersea cables (generally fiber optic) for international communications and the vastly expanded domestic cellular network had essentially reversed FISA’s technological assumptions deleteriously impacting the NSA’s ability to conduct its signals intelligence mission, especially given the dramatically different threat environment captured in its most horrid manifestation in the September 11, 2001 terror attacks.[17]

In an effort to address the intelligence needs directed towards the terrorist threat environment following those September 11 attacks, President George W. Bush secretly implemented the highly classified President’s Surveillance Program which included a component known as the “Terrorist Surveillance Program” (TSP), codenamed Stellar Wind, in which the NSA collected both the contents of certain international communications and in bulk non-content (i.e., “metadata”) about telephone and internet communications.

In 2005, public disclosures of the existence of the TSP led the government to pursue authorization for the program from the FISC but certain restrictions in the FISC’s approval of the collection created, in the government’s view, an “intelligence gap” prompting the government to pursue legislative authorization for the program. Moreover, the government also had found that the fluidity of suspected terrorists’ movements and the rapidity with which they changed communications facilities were proving difficult to address under the existing FISA structure that required, for a FISA order, a probable cause showing that the suspected terrorist was an agent of a foreign power and was using or about to use a particular communications facility.

Given the inefficiencies perceived by the government in obtaining FISC approval for continued TSP collection, in the spring of 2007, the Bush administration proposed modifications to FISA. The Director of National Intelligence informed Congress that FISC modifications to the program had resulted in “degraded” acquisition of communications.[18] This, combined with reports of a “heightened terrorist threat environment,” accelerated Congress’ consideration of these proposals.[19] In August 2007, Congress passed and the president signed the Protect America Act of 2007, a legislative forerunner to what is now Section 702 of FISA. The Protect America Act was a temporary measure that was set to expire 180 days after its enactment.[20]

Shortly after passage of the Protect America Act, the government renewed its efforts to replace it with a more permanent statute. Initially, efforts became deadlocked over the issue of immunity for telecommunications providers, many of which were in litigation focused on their cooperation with the TSP. Congress finally agreed to provide telecommunications providers with blanket, retroactive immunity and, in July 2008, the legislature enacted the FISA Amendments Act.[21]

With the passage of the FAA, the government transitioned the collection activities that had been conducted under the Protect America Act to the authority of Section 702 and, where appropriate, other sections of the FAA. The provisions of the FAA were renewed in December 2012[22] with a sunset provision mandating that, absent further legislative action, the FAA will expire on December 31, 2017.

About the author:
*George W. Croner previously served as principal litigation counsel in the Office of General Counsel at the National Security Agency. He is also a retired director and shareholder of the law firm of Kohn, Swift & Graf, P.C., where he remains Of Counsel, and is a member of the Association of Former Intelligence Officers.

[3] Privacy and Civil Liberties Oversight Board, Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act (hereafter, the “PCLOB Report”), July 2, 2014, at 10.

[4]See, e.g., Laura K. Donohue, “The Case for Reforming Section 702 of U.S. Foreign Intelligence Surveillance Law,” Council on Foreign Relations, June 26, 2017 (“Section 702 violates citizens’ rights, creates a situation ripe for abuse, and undermines the balance of power between the branches of government.”).

[5] Title III of the Omnibus Crime Control and Safe Streets Act governing the use of electronic surveillance is contained at 18 U.S.C. §§ 2510-2520.

[6] 407 U.S. 297 (1972)

[7]Id. at 321-322.

[8] Officially, the “Pike Committee” was the colloquial name for the House Permanent Select Committee on Intelligence and the “Church Committee” was the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities.

[9] Project Shamrock had NSA receiving daily access to copies of all incoming, outgoing, and transiting international telegrams via Western Union, RCA and ITT. Project Minaret involved the creation of ‘watch lists’ with NSA collecting the electronic communications of those persons contained on the ‘watch lists.’ Neither Shamrock nor Minaret was conducted with any sort of warrant or judicial oversight.

[10] 50 U.S.C. §§ 1801, et. seq.

[11] All of the exceptions relate to the conduct of electronic surveillance in connection with law enforcement which is the subject of chapters 119, 121, and 206 of Title 18, U.S. Code.

[12] 50 U.S.C. § 1812.

[13] 50 U.S.C. § 1801(f).

[14] FISA created the Foreign Intelligence Surveillance Court (“FISC”) and Foreign Intelligence Surveillance Court of Review (“FISCR”) as part of its statutory scheme. The FISC consisted of 7 (later expanded to 11) judges drawn from the federal district courts and appointed by the Chief Justice of the U.S. Supreme Court. 50 U.S.C. § 1803(a). The FISCR is staffed by three judges drawn from the federal district courts or courts of appeals, and also appointed by the Chief Justice. 50 U.S.C. § 1803(b).

[16] Hearing on the Protect America Act of 2007 before the House Permanent Select Committee on Intelligence, September 20, 2007 (Statement of J. Michael McConnell, Director of National Intelligence, at 5-6).

[17]Id.

[18]See Senate Report No. 110-209, at 5 (2007) (stating that “the DNI informed Congress that the decision … had led to degraded capabilities.”).

[19] Id.

[20] The foregoing description of the events leading to the passage of the Protect America Act of 2007 is largely drawn from the recounting provided by the PCLOB in its 2014 report on the Section 702 Program. See PCLOB Report at 18-19.

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